Steven Walters
The State of Politics

You Be The Judge on Redistricting

Here are key arguments Supreme Court will hear. How would you rule?

By - Oct 2nd, 2017 12:28 pm
Sign-up for the Urban Milwaukee daily email
Assembly Districts

Assembly Districts

You’re a U.S. Supreme Court justice hearing arguments in a major case from Wisconsin that could change how the nation handles redistricting of political maps, so put on your robe — and your thinking cap.

The U.S. Supreme Court routinely tosses out redistricting maps, which draw the boundaries of U.S. House and legislative districts, that discriminate against minorities. But tomorrow, it will hear arguments on whether a new standard – districts that blatantly discriminate against voters from one party or the other – should also be applied to redistricting.

Challengers to Wisconsin’s 2011 Republican-drawn maps say they have illegally high “efficiency gaps” that stack so many Democrats in a minority of districts, and so many Republicans in a majority of districts, that Republicans have an unconstitutional advantage.

Here is a preview of what you will hear tomorrow, taken from legal briefs from those challenging Wisconsin’s 2011 redistricting and those defending the current maps:

The criticism: “In recent years the two major political parties, leveraging the technologies of the modern age, have intentionally and systematically excluded each other from state legislatures like never before. Democrats rigged the maps in Illinois, Maryland and Rhode Island, while Republicans did so in Wisconsin, Michigan, Ohio, Pennsylvania and North Carolina.”

Response: “The Wisconsin Legislature engaged in partisan gerrymandering early in the state’s history. In 1868, the Republican Legislature ‘gerrymandered’ the congressional districts to ensure that 5 of 6 Wisconsin House of Representatives members were Republicans. When Democrats gained control of the Assembly, they employed similar measures.”

Criticism: “This partisan gerrymandering has, in their states and across the nation, sounded the death knell of bipartisanship. When maps have been gerrymandered, candidates and legislators need worry only about primaries, which are increasingly won by politicians who cater to the far ends of the ideological poles. This lack of cooperation breeds distrust, dysfunction and hostility… The resulting malice and dysfunction are precisely the opposite of the ideal to which our democracy aspires.”

Response: “[Challengers] would also create an unthinkable imbalance…making allegations of partisan gerrymandering more legally powerful than claims even of racial gerrymandering…”

Criticism: “As those in power grow accustomed to choosing their own voters, they stop treating the people as constituents to whom they must answer. Meanwhile, legislators in safe districts ignore constituents who support the other party because the only election that matters is the primary.”

Response: “It is possible that a high ‘efficiency’ gap indicates nothing except that one party beat the other party in several close elections – a fact that says nothing about whether a map itself is too ‘partisan’.”

Criticism: “Gerrymandered districts often divide communities, making it next to impossible for legislators to represent community interests, and leaving voters confused…. [Former Wisconsin Rep.] Amy Sue Vruwink recounts how, after her district was redrawn, former constituents continued calling her for help, not realizing they had been gerrymandered out of her district.”

Response“[Challengers] view of voting – regarding ballots as economic transactions, valuable only when ‘efficiently’ cast – distorts the role that votes play in our democracy….Democratic voters concentrate in big cities…

[Challengers] social-science approach would sow chaos. Each legislatively drawn plan would be immediately be challenged in federal court. There would be no way for any legislature to know what metric would guide the inevitable future trial.”

Criticism: In today’s data-driven era, legislators who wish to secure their party’s hold on power need only reach out for the block-by-block voter information and sophisticated computer programs…Take, for example, the Wisconsin Assembly. In the 2012 elections, Democrats won their districts by an average vote of 68.8%, which netted 39 Assembly seats, while Republicans were able to win far more seats (60) by creating districts with a smaller, but still comfortable, margin of 59.7%.”

Response“The Legislature’s map drawers took politics into account as one of many factors. The map-drawers first drew and then ‘locked’ in Milwaukee districts to comply with the Voting Rights Act. Then they carefully designed their draft maps to comply with equal-population requirements, as well as traditional redistricting principles such as compactness, contiguity and respect for political-subdivision lines.”

Criticism: “Modern-day gerrymandering by both parties represents a grave and growing threat to the Constitution’s vision of democracy. The Court has not hesitated to step in when incumbents seek to entrench themselves at voters’ expense or otherwise disenfranchise those they do not like.”

Response“Federal courts lack jurisdiction to decide political questions….This court has never found that a state legislature engaged in unlawful partisan gerrymandering.”

Those are the key arguments. Now, Mr. or Ms. Justice, what is your decision?

Steven Walters is a senior producer with the nonprofit public affairs channel WisconsinEye. Contact him at stevenscwalters@gmail.com

More about the Gerrymandering of Legislative Districts

24 thoughts on “The State of Politics: You Be The Judge on Redistricting”

  1. happyjack27 says:

    Criticism and response 1:
    Defendants choose not to dispute the criticism. The criticism therefore stands.

    Criticism and response 2:
    Defendants choose not to dispute the criticism. The criticism therefore stands.
    Defendants also leveled a bold (and irrelevant) accusation that they provided no evidence to support.
    The court admonishes defendants for this. All claims must be supported by evidence. Also all claims must be relevant to the merits of the case.

    Criticism and response 3:
    Either the defendants have a complete lack of understanding of the metric in question, or they are willfully lying to the court
    In the first case, the court advises defendants to read the case filings. It is their responsibility as attorneys of law to do so.
    In the second, if this obviously false argument is repeated, the court will find Defendants in contempt.

    Criticism and response 4:
    Defendants are right to argue that communities of interest is gerrymandering.

    Criticism and response 5:
    Defendants choose not to dispute the criticism. The criticism therefore stands.

    Criticism and response 6:
    The fact that the court is hearing this case now directly refutes defendant’s claim.
    Defendants should refrain from putting words in our mouths. We will write the orders and opinions, thank you.

    Wow, that was easy.

  2. Ray J says:

    Here is why the Efficiency Gap may not be allowed in the hearings:
    https://www.youtube.com/watch?v=Ei4It0-ylT4&feature=youtu.be

  3. happyjack27 says:

    Here are the amicus briefs in support of Appellees (many which include other measures besides efficiency gap):

    https://www.brennancenter.org/legal-work/whitford-v-gill

  4. Rich says:

    Awww, snap! Cancel the trial. We’ve got a YouTube video with “the truth” in the title. Case closed!

  5. happyjack27 says:

    I’ve forwarded the video to all 9 Supreme Court justices. I’m confident it will save them much toil and trouble.

    Thanks, Ray!

    -America

  6. happyjack27 says:

    I listened to about 2 minutes of the video. Just in the first two minutes it’s woefully factually incorrect.

    For example he says courts have not ruled that lines should be redrawn due to partisan gerrymandering. Florida has already redrawn their lines due to exactly such a court order.

    And indeed, this very case — Whitford v Gil — is an appeal of a court decision to redraw the lines because it was an extreme partisan gerrymander.

    Then they claimed that it’s not allowed in four to argue for proportional representation. This is immediately refuted by the voting rights act. Not only is it allowed, that argument has one so overwhelmingly in court that it’s now an amendment to the constitution.

    After two overtly false statements I stopped watching.

  7. Ray J says:

    In the Florida redistricting lawsuit, it was shown that the redistricting violated Florida state voter-approved Fair Districts gerrymandering standards passed in 2010. The lawsuit was not based on the US Constitution. So, yes, they had to redraw lines due to a court order, but not according to anything under federal jurisdiction. There is a Florida federal lawsuit in the works, but it is only in the works.

    Proportional representation is allowed under the Voting Rights Act, but it pertains to racial (and similar) proportional representation. The act was created because there were discriminatory practices going on, especially in the south, including requiring literacy tests to vote. Proportional representation is not guaranteed for political parties but majority-minority districts have been established along these lines.

  8. happyjack27 says:

    So then let’s find the middle ground here – the legality of partisan gerrymandering has not even decided yet. And oral arguments on the subject will be heard tommorow by SCOTUS.

    And their decixision will have huge ramifications for democracy, or for tyranny.

  9. Ray J says:

    Agreed.

    But I do not think the case is as important as people think. RedMap caught everyone off guard. Today, there is a huge grass-roots push to reform redistricting, Florida being a good example. If the Supreme Court reverses Whitford v Gill, there will be plenty of support for reform in and before 2020. Remember, Democrats gerrymander every chance they get, too. It’s just that RedMap was implemented so perfectly that Republicans are getting most of the blowback.

  10. David Nelson says:

    This article is very poorly written, especially considering the importance of the subject. Few of the included elements are well explained, and the Response sections are particularly poorly explained. I am not familiar with Steven Walter’s work, and much of it may be good. This is not. Time must be taken to flesh out the concepts and statements so people less familiar with Gerrymandering can gain a grasp of the salient points. It may also be beneficial to describe how the court may few some aspects of the case in a procedural sense.

  11. happyjack27 says:

    There’s really not much to defendant’s position. It basically breaks down to:

    * the court can’t rule on this case – maybe we let the courts decide that, hmm?
    * wi is not actually gerrymandered – no, this is contradicted by every measure there is.
    * gerrymandering is a natural consequence of democrats living in urban areas – a) ok, so draw lines that compensate for that. b) wi gerrymandering is currently WAY beyond what can be attributed to that effect.
    * making it fair would make it less compact – no, actually it would make it more compact.
    * gerrymandering is ok – for a tyranny, maybe.

    there may be a few more that i’m forgetting. but you get the idea – defendants have nothing. this is an open and shut case. there’s not much to understand about it when it comes to the defendants, except that they’re evil and shameless.

  12. Vincent Hanna says:

    Is Kennedy going to see it that way? It’s going to come down to him on this case.

  13. happyjack27 says:

    i forgot there is one good point that defendants have, but it shouldn’t matter in this case:

    efficiency gap assumes proportionality which is mathematically impossible in a winner-take-all election system.
    instead the court should use a symmetry-based measure.

    “Is Kennedy going to see it that way? It’s going to come down to him on this case.”

    This does not bode well for getting kennedy, as he has previously suggested he’d prefer a symmetry based measure, that doesn’t require proportionality.

    however it shouldn’t matter in this particular case because for WI, all gerrymandering measures strongly agree that this is an extreme gerrymander.that cannot be explained by geography. and the court could easily deny the appeal without saying anything about the efficiency gap measure in particular.

    However… we quickly forget that Republicans violated separation of powers and stole a Supreme Court seat from America.
    They have yet to schedule the confirmation hearing for Merrick Garland, so we currently have only 8 legitimate justices. Meanwhile, they put an extremely conservative person as a stand-in (Gorush), and in practice, at least, his vote will count as if he was actually legitimately appointed.

    Gorush is a bit of a wildcard here – we have little information about how he will vote on this particular issue. Only that he has a clear ideological leaning and a long history of putting personal ideology ahead of justice.

    So all in all, even though the case is open and shut, the odds aren’t that good, because republicans didn’t only steal the congress through gerrymandering, and not only the presidency through lies and collusion, they also stole the judiciary by pretty much taking it outright in plain daylight. we have a full tyranny here, folks. all three branches have been usurped. odds don’t look good.

    Still, I’m crossing my fingers and watching intensely .

  14. Vincent Hanna says:

    Gorsuch has been described as to the right of a Scalia since he joined the court. I’m not optimistic about him.

  15. happyjack27 says:

    Problem is 4 of the justices don’t give a crap about justice, and a 5th (kennedy) might as well be replaced by a coin toss.

    So what we really need to do is trick those 4 corrupt justices into doing the right thing by bringing a _democratic_ gerrymander to them. I speak of course of Maryland.

    Bring Maryland to SCOTUS and those 4 will flip like they were Donald Trump ( https://twitter.com/mattaukamp/status/755511596047298564?lang=en ) and I dare say it’s in the bag.

  16. Vincent Hanna says:

    Good point. I wonder if Maryland will be brought up during arguments.

  17. JayS says:

    Anyone have a link to a Computer generated redraw of WI where the districts are (1) as compact as possible and (2) follow governmental unit boundaries (3) without any consideration to party affiliation/voting patterns? Just curious as to how the R v. D count/balance would come out if one applies the party affiliation only ‘after’ the districts are sized and shaped using only the geographical considerations.

  18. happyjack27 says:

    JayS: Jowei Chen analyzed hundreds of such maps. http://www-personal.umich.edu/~jowei/Political_Geography_Wisconsin_Redistricting.pdf

    his work is cited in on of the Amicus Briefs to the WI case.

  19. happyjack27 says:

    Personally I’ve used created optimially gerrymandered WI congress maps, for each party, and compared the current map to them. The results are here:

    https://docs.google.com/document/d/17dpF9xejx0T8M2VObmeWaMrP22-GdO0vC5IhKx4ICwg/edit?usp=sharing

    It’s congress, not state legislature, so it’s the wrong political body. Presumably the spread would be less for state legislature because there’s about 10 times as many districts which makes it a lot more restrictive. Still this gives you a pretty good sense of how much control a redistrictor has over how many seats each party gets. Also shows that WI congress (in addition to the state legislature) is gerrymandered almost as much as mathematically possible. (the computer optimization beats it by a hair)

  20. JayS says:

    An interesting Argument which implies that our representative form of government can not function as-to represent everyone in a district;if I am a Democrat living in Menominee Falls or a Republican living in Shorewood my partisan ‘interests’ will never be properly represented.

    This sounds like a stepping stone to direct democracy or a call to reduce government’s involvement, in our lives, to those things we have in general agreement.

  21. David Nelson says:

    Jay S: I think you are missing the point. There is never a way that a single person can always get what they want in a large group of folks unless the preferences of the aggregate perfectly corresponds to that individual.

  22. happyjack27 says:

    The goal of a congress is to represent partisan interests (or any other sort of interest) proportionally.
    The problem is that most u.s. states still use single-winner election systems, which have two huge flaws: they suffer from tyranny of the majority, and they are easy to gerrymander.

    A simple solution is to switch to multi-member proportional districts.

  23. Jake formerly of the LP says:

    Agree with happyjack that either multi-member districts and/or at-large, statewide districts are the way to go to lessen the impact of gerrymandering.

    Of course, an independent commission would also help solve the problem with simple compact, “common interest/community” districts. But the current system is broken and likely beyond repair in its current “leave it to the states” method

Leave a Reply

Your email address will not be published. Required fields are marked *